Allan Earnshaw: NEMA Terribly Fails our Environment

Posted on29 October, 2009

We are all aware of the environmental disaster that is the Mau Forest, where not only the forest is threatened but also rivers, lakes and even wildlife reserves, including the world-famous Maasai Mara.

What is odd is that in environmental legislation, Kenya led the way in 1999 when it created the ground-breaking Environment Management and Coordination Act.

When it became law, I for one, breathed a big sigh of relief. At the time I was part of a vigorous effort by the Kenya Association of Tour Operators to get a moratorium declared on the increasing number of random and unplanned tourist camps and lodges in the Maasai Mara.

Prior to EMCA, if you wanted to put up a camp in the Mara you simply made a deal with the local Maasai community leaders, had a quick chat with the county council, and away you went. With the coming of EMCA in came the cornerstone of the whole environmental process, the Environmental Impact Assessment.

So why, despite EMCA, was there a new wave of development of camps and lodges not only in the Mara but around the country?

In the Mara alone, more than 60 new properties have been put up since 2004. And isn't this the time when the greatest acceleration of destruction took place in the Mau too?"

So it seems that rather than saving our environment, as I had hoped, EMCA and the EIA process look as if they are accelerating its decline. How can this be happening?

I chaired an environmental meeting two weeks ago at which I asked my fellow participants why it was that so many EIA licences seemed to be granted to outfits which hadn't even applied yet for a business licence or a PIN from the Kenya Revenue Authority?

In the earnest discussion that followed it emerged that many businessmen felt that applying for an EIA should be the first tick in the box, because if one failed to get it, why waste more money getting any other licences?

Secondly, what do you think of a process whereby the developer pays the "expert" who does the EIA proposals for him?

He or she doesn't pay the National Environment Management Authority, whose job it is to administer the act and approve an EIA proposal.

It stands to reason that if you're allowed to pay the piper he'll play any tune you want.

So why doesn't Nema have a list of approved and certified environmental "experts" that get paid to go out and do EIAs? That way the applicant doesn't get to choose which "expert" goes out into the field to do the EIA, and he doesn't get to influence the process by paying the "expert" directly.

Sounds simple? It is. But it's not what's happening. Nema is being inundated by EIAs written up by "experts", none of whom has a bad word to say about their proposed projects.

And, finally, why have a tribunal, which can issue stop orders against contested development projects only for the developer to appeal to the high court and nullify the order?

Yes, there should be the facility to appeal, but why is the stop order set aside? Hotels, camps, shops and malls are being completed whilst EIAs are contested in the high court.

Surely if we are all entitled to a "clean and healthy environment" under the act, stop orders by the tribunal should be maintained until final rulings are made, either by the high court or the tribunal.

Nema has a tremendous mandate to do good. However, if its fails us then they have the capacity to do us more harm than good.